IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10412 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 3 2 To be referred to the Reporter or not ? NO Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial 4 question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= YOGINBHAI NITINBHAI PATEL - Petitioner(s) Versus COMMISSIONER OF POLICE & 2 - Respondent(s) =========================================================
Appearance :
HL PATEL ADVOCATES for Petitioner(s) : 1, RULE SERVED BY DS for Respondent(s) : 1 - 2.
MR LB DABHI ASST.GOVERNMENT PLEADER for Respondent(s) : 2 - 3.
=========================================================
CORAM : HONOURABLE MR.JUSTICE M.R. SHAH
Date : 09/10/2012
ORAL JUDGMENT
1.00. Present writ of habeas corpus has been preferred by the petitioner – detenu challenging the impugned order of detention passed by the Commissioner of Police, Vadodara dtd.20/6/2012 in exercise of powers conferred on him under sub-section (2) of Section 3 of the Gujarat Prevention of Antisocial Activities Act, 1985 (for short 'the PASA Act') and also for an order to set him free from detention.
2.00. The order of detention along with the grounds supplied to the detenu are suggestive of the fact that the petitioner has been detained labelling him as a “dangerous person” as provided under sub-section (2) of Section 3 of the PASA Act. The grounds of detention are also suggestive of the fact that the detaining authority has taken into consideration two offences registered against the petitioner, out of which the first offence is registered against the petitioner vide CR No.II-
78 of 2012 with Gorva Police Station for the offences punishable under sections 323, 325, 294(B), 506(2) and 114 of Indian Penal Code and under section 135 of the Gujarat Police Act and another offence being CR No.I-141 of 2012 has been registered with Gorva Police Station for the offences punishable under sections 143, 144, 147, 148, 149, 437, 452, 504, 506(2) and 120(B) of Indian Penal Code and under section 135 of the Gujarat Police Act. So far as first offence being CR No.II-78 of 2012 registered with Gorva Police Station is concerned, chargesheet has been filed and is pending before the Court and so far as another offence being CR No.I—141 of 2012 is concerned, it appears that the same is “pending investigation”.
3.00. It appears that the subjective satisfaction as reflected from the grounds are to the effect that the detenu is habitually indulging in offences falling within the Indian Penal Code, and the activity of the petitioner detenu disturbs the public order. On the aforesaid two offences, the Commissioner of Police has ordered detention of the petitioner.
4.00. It is also required to be noted that even with respect to the second offence being CR No.I-141 of 2012 alleged to have been happened on 14/6/2012, the petitioner - detenu himself has received injury and even a cross-complaint has also been filed by the petitioner - detenu.
5.00. Mr.Vijay Patel, learned advocate appearing on behalf of the petitioner - detenu has vehemently submitted that the impugned order of detention malicious, unjust and illegal. It is further submitted that as such there is no material available with the detaining authority to indicate that the detenu is a ‘dangerous person’ as defined under Section 2(c) of the PASA Act nor there is any material or antecedents to show that he is a habitual offender and involved in antisocial activities prejudicial to the maintenance of public order.
6.00. The learned advocate appearing on behalf of the petitioner detenu has further submitted that the incidences referred to in the detention order is stated to have been occurred on 13/3/2012 and 14/6/2012 and as such the the dispute is between to individuals with respect to some love affairs and the same has nothing to do with the maintenance of the public order. It is submitted that in both the cases as such the petitioner - detenu has been released on bail.
7.00. It is further submitted relying upon two incidences out of which, so far as the first offence is concerned, there is already a cross-complaint filed by the petitioner. Therefore, it is submitted that the opinion formed by the detaining authority that thew petitioner is a “dangerous person” has been vitiated.
8.00. Mr.Patel, learned advocate appearing on behalf of the petitioner - detenu has submitted that the detaining authority has completely misunderstood the difference between 'public order' and 'law and order'. Mr.Patel, learned advocate appearing on behalf of the petitioner - detenu relying upon several decisions of the Hon'ble Supreme Court as well as this Court has submitted that the petitioner cannot be detained under the provisions of the PASA Act on the basis of the two offences and the alleged activities of the petitioner, as the same cannot be said to be disturbing the public order in any manner.
9.00. In support of his above submissions, Patel, learned advocate appearing on behalf of the petitioner - detenu has relied upon the following decisions :-
(i) Mustakmiya Jabbarmiya Shaikh v/s. M.M.Mehta, Commissioner of Police and others [1995(2) GLR 1268],
(ii) Hafijuddin Fazluddin Kazi v/s. Commissioner of Police, Ahmedabad city and another [1992(2) GLR 1332],
(iii) Abdul Razak Nannekhan Pathan v/s. Police Commissioner, Ahmedabad and another [1990(2) GLH 137].
(iv) Abdul Razak Nannekhan Pathan Vs. Police Commissioner, Ahmedabad and another [(1989)4 SCC 43]
(v) Rashidmiya @ Chhava Ahmedmiya Shaik Vs. Police Commissioner, Ahmedabad and another [(1989)3 SCC 321]
(vi) Ayub @ Pappukhan Nawabkhan Pathan Vs. S.N. Sinha and another [(1990)4 SCC 552]
(vii) Ram Manohar Lohia Vs. The State of Bihar and another [AIR 1966 SC 740]
(viii) Superintendent, Central Prison, Fatehgarh and another Vs. Dr. Ram Manohar Lohia [AIR 1960 SC 633]
(ix) Piyush Kantilal Mehta Vs. Commissioner of Police, Ahmedabad City and another [1989 Supp (1) SCC 322]
(x) In Re, Sushanta Goswami and others Vs. West Bengal [(1969)1 SCC 273]
(xi) K.K. Saravana Babu Vs. State of Tamil Nadu and another [(2008)9 SCC 89] and
(xii) Omprakash Vs. Commissioner of Police, Ahmedabad and others [1990(2) GLR 730);
(xiii) Shamjibhai Manjibhai Patel Vs. Commissioner of Police, City of Ahmedabad and another [1992(2) GLR 1360]
(xiv) Noormohmad Ismail Shaik Vs. Commissioner of Police, Vadodara and others [1988(1) GLR 356]
(xv) Sindhi Lohana Ravchand Gopaldas Vs. District Magistrate, Junagadh and others [1989(2) GLR 1106]
(xvi) Chandrakant N. Patel Vs. State of Gujarat and others [1994(1) GLR 761] and
(xvii) Hafijuddin Fazluddin Kazi Vs. Commissioner of Police, Ahmedabad City and another [1992(2) GLR 1332] By making above submissions and relying upon above decisions, it is requested to allow the present petition and to quash and set aside the impugned order of detention.
10.00. Mr.L.B. Dabhi, learned Assistant Government Pleader on the other hand contended that there are sufficient grounds to issue the detention order. He has further submitted that the detention order was issued after careful consideration of the materials available before the detaining authority. It is submitted that in a given case one or two incidents may be sufficient enough to exercise powers of detention, provided such instance, event or incident disturbs public order. The learned Assistant Government Pleader has further submitted that there are sufficient material before the detaining authority to issue order of detention.
By making above submissions, it is requested to dismiss the present petition.
11.00. Heard the learned advocates appearing on behalf of the respective parties at length and perused the impugned order of detention as well as grounds on which the order of detention has been passed and the supporting documents.
12.00. This Court is only required to consider whether there are sufficient grounds and materials available with the detaining authority to detain the petitioner detenu in prison without trial in exercise of powers conferred under Section 3(2) of the PASA Act, describing him as as a 'dangerous person' under Section 2(c) of the Act on the basis of the aforesaid two First Information Reports registered against him. Out of the aforesaid two offences - First Information Reports, in one offence there is cross-complaint filed by the petitioner - detenu and even the petitioner - detenu has received injury in the said incident and even the the dispute is private in nature between the complainant and the accused with respect to some love affairs. Under the circumstances, it cannot be said that the petitioner is a habitual offender and/or “dangerous person”. From the aforesaid two offences it cannot be said that the activity of the petitioner disturbs the maintenance of the public order.
13.00. Under the circumstances and for the reasons stated in the recent decision of the learned Single Judge in the case of Suleman alias Chitro Haji Sumar Nigammna, reported in 2011 (2) GLH 298 and considering the grounds on which the petitioner - detenu has been detained under the PASA Act and considering the material on record, the impugned order of detention cannot be sustained and the same deserves to be quashed and set aside. It appears that there is no material which may lead to a reasonable and definite conclusion that the detenu is habitually engaged in criminal activities, and therefore, a 'dangerous person'. The detaining authority, in my view, has passed the impugned order of detention against the detenu without application of mind.
14.00. In the result, present petition is allowed and the impugned order of detention passed by the Commissioner of Police, Vadodara dtd.20/6/2012 deserves to be quashed and the same is hereby quashed and set-aside. The detenu named YOGINBHAI NITINBHAI PATEL is ordered to be set at liberty forthwith if he is not required in any other case. Petition is allowed. Rule made absolute accordingly.
Registry is hereby directed to send the writ of this order to the Superintendent, District Jail, Surendranagar.
Direct service is permitted.
[M.R. SHAH, J.] rafik